$7.32 Million Bad-Faith Verdict Against Insurer Who Refused to Settle Obvious Liability Case

In 2000, Boston attorney Richard Brody took a case that seemed at the time to be an obvious, straight-forward liability case that would most likely settle quickly — maybe without even filing a lawsuit. The case involved serious injuries suffered by another trial lawyer, Odin Anderson.

On Sept. 20, 1998 Anderson was crossing an intersection in a crosswalk after a long lunch in which he drank alcohol, when a bus, turning left, hit him before he reached the middle of the street. Anderson suffered a fractured skull and stopped breathing. Fortunately for him, the bus, owned by Partners Healthcare, was transporting a group of doctors. Several of the doctors acted on Anderson’s injury and administered CPR. Anderson, however, suffered a traumatic brain injury that required rehabilitation to walk, speak and perform daily activities.

Today he still has memory loss, a decreased sense of smell and problems with executive functions and higher-level thinking. He did return to practice law, but he must refer complicated cases to other attorneys. The insurance company for the bus company, American International Group Inc. (AIG) instead of settling this obvious liability case, concocted a new set of facts, suppressed evidence and fought payment of a judgment until it was ordered to honor a jury verdict 8 years later.

Attorney Richard Brody wrestled with AIG and its attorneys for more than 14 years before a Massachusetts court ordered that it finally pay $7.32 million to Anderson.

The highlights of AIG’s and its lawyers’ tactics started a month after the incident. AIG’s in-house investigator recorded an interview with the driver of the bus, Norman Rice, who told the AIG investigator that he wasn’t looking to his left when he turned, he never saw Anderson, and Anderson was almost at the median when he was hit by the bus. In addition, an independent witness had told the police that Anderson was walking briskly but did not appear to be drunk or affected by drinking.

The AIG adjuster determined that the bus company and Rice had “no viable liability defense” and that Rice was “much more likely” to be found at fault than would Anderson. The AIG adjuster wanted to pursue an out-of-court settlement, but he did not approach Anderson about settlement.

After Anderson retained his friend, attorney Brody, to represent him, AIG became aggressive and refused to settle. Instead, AIG and its lawyers made up an entire new set of facts that included Anderson being drunk and darting in front of the bus from between parked cars outside of the crosswalk.

Later, in the bad-faith lawsuit, the court noted that this alternate theory of the case made up by AIG and its lawyers was “nothing but a chimera.” Although Brody had requested all written statements in AIG’s possession, the insurer did not produce the Rice interview recording. In fact, Brody did not learn of the interview until a month before the trial. He learned about the interview and its recording during the depositions of the defendants’ expert as it was listed as a document that the expert relied on but was the only document the defendants’ lawyers did not bring to that deposition. The tape recording was not produced until the court ordered AIG to do so on the first day of trial.

The Rice statement was completely consistent with the independent witness’s version of the incident. At trial, the bus driver Rice testified that he was looking but did not see Anderson until the last minute. On the last day of testimony, the defendants called an expert who said for the first time that his tests had shown it was impossible for the bus to turn tightly enough to hit Anderson near the median and that Anderson must have been hit between parked cars after he ran out between them. In spite of that, the jury verdict in the liability trial was $3.18 million, but was reduced by 47% for the comparative fault assigned to Anderson, reducing the verdict to about $2.24 million.

Even though the verdict was highly favorable to AIG, it appealed. The bad-faith case was stayed during the appeal of the liability case. When the jury’s liability verdict was affirmed, the bad-faith lawsuit continued. Five years had passed.

In the bad-faith case, AIG produced its legal bills, which included a charge for an 18-hour deposition preparation session of the bus driver. Finally, AIG and its attorneys were required to produce the video — the video of the bus driver’s witness preparation. Rice could be seen giving an answer and then there was be a gap when the filming stopped; when it resumed, he could be seen giving a different answer.

After the bench trial in the bad-faith case, the judge entered the verdict for Anderson for $7.32 million indicating that AIG and its attorneys had acted in bad faith in choosing not to negotiate settlement of an obvious liability case, by hiding evidence, by taking an unreasonable and unnecessary appeal of the liability case and by deliberately attempting to skew the legal system and deprive Anderson of fair compensation for his injuries. The opinion of the judge in the bad-faith case was scathing, criticizing AIG and its tactics.

Congratulations to Boston attorney Richard Brody for a job well done in helping his client prevail.

Kreisman Law Offices has been handling automobile accident cases, medical negligence cases, nursing home abuse cases and trucking accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Niles, Evanston, Wilmette, Winnetka, Kenilworth, Rolling Meadows, Bolingbrook, Romeoville, Hinsdale, Naperville, Round Lake Beach, New Lenox, Park Forest, Park Ridge, Palos Heights, Palos Park and Flossmoor, Ill.

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